Rees, Neil --- "Coe and Duncan v Bobilak (Anti-Discrimination - provision of services - damages - ss. 7, 19 and 113 Anti Discrimination Act 1977 (N.S.W.))" [1983] AboriginalLawB 30; (1983) 1(9) Aboriginal Law Bulletin 6

• Coe And Duncan V Bobilak
• Anti-Discrimination-Provision Of Services-Damages-Ss. 7, 19 And 113 Anti Discrimination Act 1977 (N.s.w.)

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Coe and Duncan v Bobilak

Anti-Discrimination - provision of services - damages - ss. 7, 19 and 113 Anti Discrimination Act 1977 (N.S.W.)

Coe and Duncan v Bobilak

Equal Opportunity Tribunal at Sydney (Ms. K. Loder, Mr. T. Williams, Dr. B. Thiering)

8 July, 1983 (No. 23 of 1982)

Casenote by Neil Rees

The complainants both Aboriginal women, lodged complaints with the Counsellor for Equal Opportunity that on 26 June, 1981 they were refused service at the Family Hotel, Newcastle because of their race. The respondent was the licensee of the hotel.

The complainants gave evidence that they attended the Family Hotel with Katherine Wotherspoon, a white woman. It was not in dispute that the complainants were refused service by the bar manager. In the course of its decision the Tribunal discussed the relevant facts –

The evidence in respect of what took place and what words were spoken at this time is noted from the transcript: Katherine Wotherspoon said: "A man came up to us and asked Bernadette and Linda whether they were Aboriginal and they said `yes', and he said we weren't allowed to have a drink there and stay there" and later, "He said well we don't serve you in here, we don't serve Aboriginals" and later, "I said well where is the publican, and he said the publican is not here, and he said anyway the publican says we're not allowed to serve blacks in here anyway."

Bernadette Duncan (now Munro)
"We ... ordered our drinks and then this man came up to me and asked if we were Aboriginals and I said: Yes why; he said: you won't be served and I said: Why not; and he just held his head up and he said "You won't be served because we had trouble with Aboriginals here before"; and later "Well I told the other girls that he wouldn't serve us and they asked him again why and said again because Aboriginals played up here before and then Katy said: Who are you to say that anyway? And he said: I'm the bar manager."

Linda Coe said:
"A bloke came over and said that we couldn't be served." and later "He was talking to Dette and I asked her because I couldn't hear him too clearly and she told us and then we asked him again and he said that because we were dark."

In answer to a question put by Mr Tickner representing her the witness said "Because we were black".

The Tribunal accepts the evidence of the complainants and Katherin Wotherspoon. Therefor there would appear to be clear proof of direct discrimination. However, the Tribunal must also consider the evidence of the bar manager, to decide whether the respondent has given a lawful reason for the refusal of service.

The bar manager, Mr Kidd, gave evidence with regard to the incident and said there was a fourth person present. The Tribunal members accept the evidence of the complainants and Katherine Wotherspoon that a party of three only attended the hotel and comments that Mr Kidd may have been mistaken as to the number of persons in the group at the time, as evidence was given that there were a number of persons in the hotel, and Mr Kidd's tasks as bar manager may have required his attention in various other duties, apart from focussing on this particular group.

He said, "There was four of them on the corner of the bar" and "They were standing together so I took them as being together". "They were all standing around in a circle". "When I called in - I'd just seen the lady and I said: `you will not be served' "... They said: why are we being refused service? And I explained, I said: We had some problem in here last night. I said: This lady here was barred. One of them said: There's Aboriginals drinking over there. And I said: That is correct. They've been drinking here a long time, I know them all. The ones I do not know or that come in with this group could have been one of the forty-five or fifty out the back which I did not know quite a lot of them. And I took it that-as I say, she was in here, it was the same crowd come back in again and I said: You're refused service."

The Tribunal is sympathetic to the aims of the respondent "to cut out the rough stuff and make the hotel orderly and well run" but in endeavouring so to do, it is unlawful for the respondent to discriminate against a person on the ground of his race.

The Tribunal accepts that the hotel staff does not consciously practice a policy of racial discrimination - evidence was given by the bar manager that the hotel's customers include Aboriginals, Tongans, Fijians, Filipino, Koreans, Taiwanese and Japanese. On the night of this incident there were Aboriginal people in the hotel but as the bar manager stated "They've been drinking here a long time, I know them all."

With the experience of the previous night weighing heavily on his mind the bar manager has arbitrarily concluded that the unknown Aboriginal persons requesting the service of drinks at this hotel are likely to behave in the same manner as did Aboriginal persons present on the previous night.

Even if the Tribunal were to accept the evidence of Mr Kidd that the words spoken by him clearly indicated to the complainants that his reason for the refusal of service was in the interests of keeping the hotel orderly, it is open to the Tribunal to infer that the complainants were treated less favourably by the licensee's staff than persons of the non Aboriginal race would have been treated in the same circumstances or in circumstances which were not materially different. The Tribunal to decide this point asks the question: Would service have been refused had the group comprised three (or even four) Caucasians? The Tribunal is of the view that service would not have been refused. The unjustified assumption of the bar manager that Aboriginal persons not known to him may behave in a disorderly fashion has contributed to his decision to refuse service. Clearly the complainants were discriminated against on the ground of their race. To refer to sections 7 and 19, the complainants have established they were treated less favourably in the same or similar circumstances than persons of other races; that this treatment was because of their race, and that the respondent unlawfully refused to provide them with goods and services.

Upon being refused service the complainants returned home and the Tribunal accepts their evidence that they felt insulted and were upset and embarrassed. They were deprived of the pleasure of relaxing at a night out - a rare event at that time as both complainants were breast feeding babies, which restricted their social life. The complainants became involved in the processes of lodging this complaint and in pursuing it have attended before this Tribunal to give evidence.

To compensate for these factors the Tribunal proposes to award each complainant damages in the sum of $750 each.

The Tribunal therefore finds the complaint of Linda Coe and Bernadette Duncan against Robert Bobilak substantiated and orders the the said Robert Bobilak to pay to each of Linda Coe and Bernadette Duncan the sum of $750 damages by way of compensation.

Mr. Robert Tickner of the Aboriginal Legal Service, Sydney appeared for the complainants.